Complainant

Respondent

Parties

Mr Anthony Dunne

JMS Holdings International Ltd Shanahan’s On The Green

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

The Respondent did not attend and was not represented at hearing. 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00068670-001

16/01/2025

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068670-002

16/01/2025

This matter came before the Workplace Relations Commission dated 16/01/2025 as a complaint submitted under section 12 of the Minimum Notice & Terms of Employment Act, 1973.  The aforesaid complaint was referred to me for investigation.  A hearing for that purpose was scheduled to take place on 24/04/2025. 

The Complainant at all material times was employed by the Respondent as a butcher.  The Complainant commenced his employment in the Respondent company on 28/01/2002.  His employment ended on 26/10/2024 when the business closed.    The Complainant was paid €807.69 gross per week for which he worked 35 hours.

The Complainant alleges contravention by the Respondent of provisions of the above listed statutes in relation to his employment with the Respondent.

CA-00068670-001 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973 (the “1973 Act”)

The Complainant submits his employment with the Respondent restaurant ended on 26 October 2024.  The Complainant submits he had received no notice in advance of this.  The Complainant submits he commenced employment on 28/01/2002 and accordingly is entitled to 8 weeks’ notice.

The Complainant submits he was not paid his last week’s wages or the bank holiday due to him and that he was not paid for 10 days of annual leave accrued and not taken. 

CA-00068670-001 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973 (the “1973 Act”)

The Respondent did not attend and was not represented at hearing.  I note the Respondent has not engaged with the WRC or filed any written submissions or documentation.  In the circumstances no evidence has been proffered on behalf of the Respondent. 

In circumstances where I am satisfied that the Respondent was properly served with notice of the date, time and venue of the adjudication hearing and having waited some time to accommodate a late arrival and where I formally opened and closed the adjudication hearing on the 24/04/2025, I will proceed to set out hereunder my findings and conclusions.

CA-00068670-001 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1973 (the “1973 Act”)

The Relevant Law

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

 “(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be  

(a) – (d) not relevant

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.”

I find the complaint made pursuant to the 1973 Act to be well-founded arsing out of the failure of the employer to provide notice on termination of the contract.  I direct the Respondent to pay to the Complainant €807.69 x 8 = €6,461.52 gross which is the minimum notice based on 22 years of service.   

CA-00068670-002 complaint pursuant to section 6 of the Payment of Wages Act, 1991 (the “1991 Act”).

When considering and determining the Respondent’s failure to pay the Complainant his last week’s wages or the bank holiday due to him or the 10 days of annual leave accrued and not taken, as set out in his complaint form, and averred under affirmation at hearing, I am guided by the Superior Courts where it has been held that statutory adjudicative bodies should not adopt a more stringent procedural approach than that adopted in ordinary litigation.  I note in particular in the case of County Louth VEC v. Equality Tribunal [2009 IEHC 370] where the High Court held as follows:

“If it is permissible in court proceedings to amend pleadings where the justice of the case requires it, then, a fortiori, it should also be permissible to amend a claim as set out in a form such as an originating document before a statutory tribunal, so long as the general nature of the complaint remains the same.” 

I am satisfied that if a fact is referred to in the written submissions which correlates with a cause of action not selected on the complaint form the Respondent has been afforded the opportunity to deal with this matter as it was clearly set out in the Complainant’s submission.  I am satisfied there is no prejudice served upon the Respondent.     

I determine this complaint is properly before me as the narrative is clearly set out in the Complainant’s WRC Complaint Form filed with the WRC and the Respondent suffers no prejudice on the basis the fact is clearly referred in the complaint form and correlates with a cause of action albeit not selected on the complaint form.   

For the reasons set out above, as the Workplace Relations Complaint form is not a statutory form, I deem it appropriate in the interests of fairness to add a complaint under section 6 of the Payment of Wages Act, 1991.

The Relevant Law

The 1991 Act provides the following definition of wages: 

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 6 of the Act states:

6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 4C or 5 as respects a deduction made by an employer from the wages or tips or gratuities] of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding—

(a) the net amount of the wages, or tip or gratuity as the case may be] (after the making of any lawful deduction therefrom) that—

(i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or

(ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,

Section 5(6) of the Act states:

6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

The matter for me to decide is whether the Respondent has properly paid the Complainant in accordance with section 5 of the 1991 Act. 

In the case of Marek Balans v. Tesco Ireland Limited [2020] IEHC 55 the High Court made it clear that the WRC, when considering a complaint under the 1991 Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made.  If it is established that a deduction within the meaning of the Act had been made, the WRC would then consider whether that deduction was lawful.  The 1991 Act does not define the concept of “properly payable” and I must reach a conclusion on this by reference to objective criteria and with due deference to previous findings of the Labour Court or other authorities. 

I am satisfied the following amounts are properly payable and I direct that the Employer to pay compensation as follows:

€807.69 gross unpaid wages equivalent to 1 week.

€1,615.38 gross 10 days of annual leave accrued and not taken

Bank holiday x 1 €161.53 gross. 

CA-00068670-001 complaint pursuant to section 12 of the Minimum Notice & Terms of Employment Act, 1993

I decide this complaint is well-founded.  Therefore, I direct the Respondent to pay the Complainant €6,461.52 subject to all lawful deductions in accordance with section 4 (1) (e) of the Act. 

CA-00068670-002 complaint pursuant to section 6 of the Payment of Wages Act, 1991 (“the 1991 Act”).

I decide this complaint is well-founded.  Therefore, I direct the Respondent to pay to the Complainant €2,584.60 gross (comprising €807.69 + €1,615.38 + €161.53) as set out above. 

Minimum notice; payment of wages; respondent did not attend;